Mohamed v. United States

Background

Omar Osman Mohamed, a Somali citizen who entered the United States as a refugee in 1995 and later became a lawful permanent resident, pleaded guilty in 2007 to misdemeanor possession of khat plants containing cathinone without a prescription, in violation of 21 U.S.C. § 844(a). The court accepted his plea on November 27, 2007. In February 2008, he received a sentence of time served, a $25 special assessment, and one year of supervised release.

During the plea hearing, Mohamed was told that, as a lawful permanent resident, he might be subject to deportation because of the conviction. He acknowledged that he understood. In 2017, a Minnesota court found him guilty of insurance fraud. The Department of Homeland Security detained him and asserted that his 2008 and 2017 convictions made him eligible for removal. His immigration proceedings included applications for cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture. The opinion states that his appeal to the Board of Immigration Appeals was pending.

In 2018, while representing himself, Mohamed filed a petition under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct the 2008 conviction. He argued that his trial lawyer had provided constitutionally ineffective assistance by failing to arrange a plea that avoided immigration consequences and by failing to advise him that the drug conviction could trigger automatic removal. The court denied that petition as untimely, finding that the limitations period should not be extended because Mohamed had been warned during the plea hearing about possible immigration consequences and had affirmed that he could communicate in English.

In December 2019, represented by counsel, Mohamed filed the present petition for a writ of error coram nobis, an extraordinary remedy generally used to challenge an old conviction when the person is no longer in custody. He alleged a different form of ineffective assistance: that his lawyer wrongly advised him that he “may” be deported instead of telling him that he “would” be deported because of the guilty plea.

Legal standards

To obtain coram nobis relief, a petitioner must show circumstances compelling relief to achieve justice, sound reasons for not seeking earlier relief, and continuing legal consequences from the conviction that the writ could remedy. The conviction is presumed correct, and the petitioner bears the burden of showing otherwise.

For ineffective assistance of counsel, the petitioner must show that counsel’s performance was objectively unreasonable and that the deficient performance prejudiced the defense. In the guilty-plea context, prejudice generally requires showing a reasonable probability that the defendant would not have pleaded guilty and would have gone to trial. When the alleged error concerns immigration consequences, the petitioner must also show that immigration consequences were especially important to the decision to plead guilty and that better advice could reasonably have led to a different plea or to litigation of an available defense.

The court discussed Padilla v. Kentucky, which held that defendants are entitled to accurate advice about deportation consequences, and Chaidez v. United States, which held that Padilla does not apply retroactively. The court nevertheless considered whether Mohamed’s claim would succeed even if Padilla applied retroactively.

Court’s analysis

The court held that counsel’s advice that Mohamed “may” face deportation was not objectively unreasonable. Deportation was not certain, so advising Mohamed that he “would” definitely be deported would have been less accurate. The court stated that counsel was not required to advise him that deportation was certain.

The court distinguished cases in which counsel had given plainly erroneous advice, such as assurances that the defendant should not face deportation or that the conviction was not a deportable offense. Under the Second Circuit law in effect when Mohamed entered his plea in 2007, an affirmative misrepresentation about deportation consequences could constitute objectively unreasonable performance. But the court found that Mohamed had not shown that his lawyer made such an affirmative misrepresentation by saying that he “may” be deported.

The court also independently found that Mohamed failed to satisfy the requirement of showing sound reasons for his delay. He waited nearly a decade before seeking to vacate the 2008 conviction and did not pursue habeas or other relief before filing his 2018 petition. The court found that his delay was not excusable. It noted that, once removal proceedings began, Mohamed had avenues of relief available to him and pursued several of them.

Disposition

Judge Denise Cote denied Mohamed’s December 5, 2019 petition for a writ of error coram nobis. The court also ruled that he had not made the required substantial showing that a federal right had been denied, so it did not grant a certificate of appealability. It further found that any appeal would not be taken in good faith.

Classification

This is a mixed ruling because the court addressed the merits of Mohamed’s ineffective-assistance claim and also rejected the petition on the separate threshold ground that he lacked a sound reason for his delay.